Can An Ex-Spouse Still Be Awarded Up To 50% Of Military Retirement Pay When The 10/10 Rule Is Not Met?

Sometimes the black letter law passed by the legislature is unclear. The legislature can’t anticipate every possible fact scenario when they pass a law, so it lay to the courts to interpret the law and give guidance to what it means. This interpretation is called case law. When the court decides a certain meeting to the law it essentially answers a legal question. Lawyers and other courts then can rely on that ruling when they have a similar issue in their case. The following case answers the question above.

In re Marriage of Gurganus, 124 P.3d 92 (Kan. Ct. App. 2005).

This case answers the following question:

Can an ex-spouse still be awarded up to 50% of military retirement pay when the 10/10 Rule is not met?

The issue in this case is whether an ex-spouse can still be awarded up to 50% of military retirement pay when the 10/10 Rule is not met. 10 U.S.C. § 1408(d)(2) does not prevent a party from agreeing in a separation agreement to pay an ex-spouse a portion of his or her military retirement pay; it merely requires that if not married for 10 years, the retiree must make the payment directly to the ex-spouse, rather than having the government withhold the money and make payments.

In this case, the service member and his ex-wife were married in 1987. The ex-wife filed for divorce in 1996, and the divorce was finalized by the court in 1997. As part of the divorce decree, one-half of the service member’s monthly military retirement pay was withheld by the government and paid directly to the ex-wife. In 2004, the service member filed a motion to terminate maintenance payments from his military retirement benefits. He also requested reimbursement for overpayment from military retirement in lieu of spousal maintenance. The service member alleged that his ex-wife was not entitled to spousal maintenance because military retirement benefits are not considered part of marital property unless the parties had been married for at least ten years. The trial court found that the income withholding order for the military retirement pay should not have been filed, and instead ordered the service member to pay one-half of his military retirement pay directly to his ex-wife, finding that the retirement benefits were marital property. The service member filed a timely notice of appeal.

10 U.S.C. § 1408(d)(2) does not prevent a party from agreeing in a separation agreement to pay an ex-spouse a portion of his or her military retirement pay; it merely requires that if not married for 10 years, the retiree must make the payment directly to the ex-spouse, rather than having the government withhold the money and make payments. Prior to this case, Kansas courts had never considered whether military pay could be split with an ex-spouse in a divorce proceeding. However, other courts have interpreted 10 U.S.C. § 1408(d)(2) as only preventing direct payments from the military if the couple was not married for at least ten years. The statute does not prohibit a couple from contracting to pay an ex-spouse a percentage of the military retirement pay. If the service member agrees to the payment, then he must make the payments to the ex-spouse himself, rather than having the government withhold the money and make the payments.

The Court of Appeals of Kansas affirmed in part and reversed in part the decision of the lower court. The court held that the service member could pay his ex-wife one-half of his military retirement pay, even if the couple had not been married for at least ten years, but the service member must pay the ex-wife himself if the couple had not been married for ten years. The court reversed and remanded the issue of what the military retirement pay was, finding that the military retirement pay was spousal maintenance, rather than marital property.